In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00122-CR ______________________________
BILLY JACK DAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 18040
Before Ross, Carter, and Cornelius,* JJ. Opinion by Justice Cornelius *William J. Cornelius, C.J., Retired, Sitting by Assignment
O P I N I O N
Billy Jack Day was indicted for intoxication manslaughter in the death of Brea Spencer. He was tried and convicted by a jury, which assessed his punishment at twelve years' confinement. The jury also found affirmatively that Day used a deadly weapon in committing the offense.
Day appeals, raising two points for reversal: (1) the evidence is factually insufficient to support the jury's verdict, and (2) it was error to include a deadly weapon finding in the judgment because the acts constituting the use of a deadly weapon for this offense are already an essential element of the offense itself.
Day does not raise a legal sufficiency of the evidence point. Under the first point, Day argues that the evidence is factually insufficient to prove that he was intoxicated at the time of the accident that killed Spencer, and he also argues that it is factually insufficient to prove that his intoxication was the cause of the accident. We overrule these contentions and affirm the judgment.
In reviewing the evidence for factual sufficiency, we view all of the evidence in a neutral light and determine whether the evidence, both for and against the verdict, is so weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if considered alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
Day and his girlfriend, Brea Spencer, went to the home of their friends Michael and Candy Hoskins to prepare to go with the Hoskinses to a bar in Paris called the Longhorn Club. Day and Spencer showered at the Hoskinses' home and prepared to go to the club from there because the power was off at their residence. While at the Hoskinses, Day, Spencer, and the Hoskinses were drinking various alcoholic beverages. Specifically, Day was drinking beer and Crown Royal whiskey. Day and Spencer arrived at the Hoskinses' house at approximately 6:00 or 6:30 p.m. They all left for the club somewhere between 9:00 and 11:00 p.m. At the club, Day continued to drink, having at least one shot of tequila and one beer. After Day and his friends had been at the club for a short while, Doug Johnson, a friend of Spencer, came in. He went over to Spencer and danced with her. Day was angry about this, but did not create a disturbance at the time. Johnson told Spencer he needed to take his mother's van to her home and needed someone to go with him to bring him back to the club. Despite Day's displeasure, Spencer insisted that she and Day provide the ride back for Johnson. Johnson drove the van to his mother's home. Day and Spencer followed Johnson in Spencer's car, with Day driving. It was approximately a fifteen-minute drive. They left the van at Johnson's mother's home and began the trip back to the club. Day, again, was driving Spencer's car. Johnson was in the back seat, and Spencer was in the front passenger's seat. The road was under construction. It was dark, and there was a dangerous curve at the construction site. Day drove at a high rate of speed. According to Johnson, Day drove 100 miles per hour at one point. When Day approached the curve, Johnson and Spencer asked him to slow down, warned him there was a dangerous curve ahead, and screamed at him to slow down. Johnson looked at the speedometer at that point, and it showed ninety miles per hour. Instead of slowing down, Day speeded up. He was unable to control the car on the curve. He ran the car over a concrete culvert, it became airborne, hit another concrete culvert, and came to rest against a piece of road-building equipment. The impact with the second culvert was so strong that the culvert, which weighed 17,000 pounds, was moved twenty-one feet from its original location. The car then caught fire. Spencer was killed; Johnson and Day were seriously injured.
We first consider Day's contention that there is factually insufficient evidence that he was intoxicated at the time of the accident. When the accident occurred, intoxication was defined in Texas law as:
A. not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
B. having an alcohol concentration of 0.10 or more.
Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3696.
We find factually sufficient evidence to support a finding that, at the time of the accident, Day was intoxicated under both definitions. There is testimony that Day engaged in several hours of drinking beer and whiskey before he left the Hoskinses' house to go to the Longhorn Club; that he consumed nearly an entire bottle of Crown Royal whiskey and that he was already intoxicated when he left the Hoskinses to go to the club; that he continued to drink while he was at the club; that he spent an hour or so at the club; and that he was intoxicated when he left with Spencer to go with Johnson to return the van. Both Michael and Candy Hoskins testified that Day was intoxicated before he went with Spencer to take Johnson to return the van. Testimony showed it took only about fifteen minutes to drive from the club to Johnson's mother's house. Michael and Candy Hoskins testified Day was intoxicated when they all left their house to go to the club, and they based their opinions on the amount of alcohol he had consumed and because of the angry attitude he always had when he was intoxicated.
Paramedics Brad Bolton, Kelly Newman, and Sam Martin, who responded to the accident and gave emergency treatment to Day and Johnson, all testified that, in their opinions, Day was intoxicated when they observed him at the accident scene. They based their opinions on Day's slurred speech, glazed eyes, strong smell of alcohol, and his preoccupation with his own condition rather than the conditions of the other accident victims, a trait they said was typical for intoxicated persons. On cross-examination, these witnesses conceded that shock might cause a person to exhibit some of these same symptoms, but stated they were convinced that Day's condition was the result of intoxication, not shock.
Additionally, a blood alcohol test made at the hospital at 3:00 a.m. (the accident occurred at approximately 12:30 a.m.) showed Day to have a blood alcohol content of 0.10. Jose Zuniga, a criminologist with the Texas Department of Public Safety, testified at length about the variables involved in the elimination of alcohol from the system. He opined that, applying the elimination rate, if Day drank no more alcohol after 12:00 midnight, a measured 0.10 alcohol content at 3:00 a.m. would indicate that his blood alcohol concentration at 1:00 a.m. would have been 0.14.
Day also contends there is factually insufficient evidence to support the conclusion that his intoxication caused the accident that resulted in Spencer's death. We disagree. Undisputed testimony from Johnson showed that Day was intoxicated when he left the club; that on the way back from Johnson's mother's house, Day was driving at extremely high speeds in a construction area on a curving road at night; that Johnson and Spencer repeatedly screamed at Day to stop driving so fast; and that, when Johnson warned there was a dangerous curve ahead and Day could not negotiate it at that speed, Day ignored the warning and even speeded up and was travelling at least ninety miles per hour. This evidence of reckless and dangerous driving, coupled with Day's heedless disregard of Johnson's and Spencer's warnings and pleadings to slow down, is factually sufficient to support a conclusion that Day's intoxication caused the car crash and Spencer's resulting death. See Sanchez v. State, 398 S.W.2d 117, 120 (Tex. Crim. App. 1965); Martinez v. State, 66 S.W.3d 467 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd); Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd); Thomas v. State, 756 S.W.2d 59, 61 (Tex. App.-Texarkana 1988, pet. ref'd).
In his second point, Day contends it was error to include a deadly weapon finding in the judgment because the actions that constitute the use of a deadly weapon in intoxication manslaughter are an essential element of the offense itself. This exact contention has been rejected by the courts. Martinez v. State, 883 S.W.2d 771 (Tex. App.-Fort Worth 1994, pet. ref'd); see also Thomas v. State, 2 S.W.3d 640, 642 (Tex. App.-Dallas 1999, no pet.).
For the reasons stated, we affirm the judgment.
William J. Cornelius*
Justice
*Chief Justice, Retired, Sitting by Assignment
Date Submitted: September 8, 2003
Date Decided: September 10, 2003
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00177-CR
______________________________
KERMIT LUCAS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 35610-A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Kermit Lucas, Jr., was placed on community supervision for a period of seven years in June 2007 after having been sentenced to ten years imprisonment for failure to register as a sex offender.[1] In September 2009, the trial court revoked Lucass community supervision, finding Lucas violated its terms when found in possession of marihuana and cocaine.[2] Lucas appeals the judgment revoking community supervision, claiming the evidence was factually insufficient to support revocation. Because there was sufficient evidence upon which the trier of fact could conclude that the State proved by a preponderance of the evidence that Lucas intentionally and knowingly possessed marihuana and cocaine, we affirm the judgment of the trial court.
I. BACKGROUND
Officer Brandon Burns of the Kilgore Police Department called for backup when he initiated a traffic stop of a vehicle operated by Dekeimus Derrell Jones for failure to stop at a designated stop sign.[3] As Burns approached the vehicle, the driver put the car in reverse, which alarmed Burns. Burns also noticed the passengerLucasmoving quite a lot. Jones gave Burns consent to search the vehicle, whereupon Burns located a small white rock inside a plastic bag in the center between the drivers seat and the front passengers seat on the floorboard in a cup holder. Burns believed the rock to be cocaine, and it later tested positive as such. The cocaine was not concealed and was within reach of both Jones and Lucas. Burns believed the cocaine to be in the care, custody, and control of Lucas.
Officer Josh Sims, also of the Kilgore Police Department, responded to the call for backup. As Sims searched the passengers side of the vehicle, he discovered a baggie of marihuana in a hole in the passengers side door. The hole was large enough to easily reach into, and looked as if it had once held a car stereo speaker. Sims was able to easily view the space containing the baggie of marihuana during his search. While the marihuana was easily within reach of Lucas from the passengers seat, Sims could not affirmatively testify that Lucas was aware of the presence of marihuana.[4]
At the time of his arrest, Lucas had only known Jones for approximately three weeksthe two having met when Jones moved into the house that Lucas and his brother shared.[5] Prior to the traffic stop resulting in Lucass arrest, he and Jones had left the house to get something to eat. They were returning home when the traffic stop was initiated. Lucas stated that he was unaware that marihuana was located in the passengers door, and he did not see the cocaine in the cup holder on the floor between the two front seats.
When questioned about the furtive movements described by Burns, Lucas stated that he was nervous and fidgety because he was on community supervision and there was a chance he would go to jail. He later stated, however, that while he did not then believe he would go to jail, he just did not like to be stopped by law enforcement officers. Lucas testified that when the narcotics were located during the search, he implored Jones to confess to his possession of them, but no such confession was ever given.[6]
Lucas testified that at the time of his arrest, he had been on community supervision for over two years, and this was his first violation. Reporting, fees, and community service were all up to date. This was verified by Lucass community supervision officer, Rex Fennell. Lucas further stated that he has a son who had trouble with drugs, and for that reason, he hates drugs and wants nothing to do with them.
II. ANALYSIS
A. Standard of Review
In a revocation hearing, the State must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999) (en banc); Armstrong v. State, 82 S.W.3d 444, 448 (Tex. App.Austin 2002, pet. refd). If the State meets its burden of proof, it is within the trial courts discretion to revoke community supervision. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Said another way, the trial courts discretion is not absolute; the State must prove every element of at least one ground for revocation by a preponderance of the evidence. In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.Texarkana 2003, no pet.). This standard is satisfied when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of community supervision. Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.Fort Worth 2000, pet. refd). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and the evidence should be reviewed in the light most favorable to the trial courts ruling. Cardona, 665 S.W.2d at 493; Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.Fort Worth 2007, pet. refd).
B. The Evidence Was Factually Sufficient to Support Revocation
Each finding in support of the trial courts decision to revoke community supervision centers either upon Lucass possession of cocaine or of marihuana.[7] The essential elements of possession of a controlled substance are: (1) the defendant exercised actual care, control, and management over the contraband; and (2) the defendant knew the substance in his possession was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Murphy v. State, 200 S.W.3d 753, 761 (Tex. App.Texarkana 2006), affd, 239 S.W.3d 791 (Tex. Crim. App. 2007); see Tex. Health & Safety Code Ann. § 481.115(f) (Vernon Supp. 2009). Possession is defined as actual care, custody, control, or management. Tex. Penal Code Ann. § 1.07(a)(39) (Vernon Supp. 2009).
Where, as here, an accused is not in exclusive possession of the place where contraband is found, additional independent facts and circumstances must be developed which affirmatively link the defendant to the contraband in order to raise a reasonable inference of the defendants knowledge and control of the contraband. Poindexter, 153 S.W.3d at 406. This affirmative links rule is designed to protect an innocent bystander from conviction merely because of fortuitous proximity to someone elses drugs. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). While mere presence in the vicinity of a controlled substance is insufficient to show possession, presence or proximity, when combined with other direct or circumstantial evidence, may well be sufficient to establish possession by a preponderance of the evidence. See id. (direct or circumstantial evidence may be sufficient to establish possession beyond a reasonable doubt). The evidence affirmatively linking the accused to the contraband must establish, to the requisite level of confidence, that the accuseds connection with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 40506.
The following is a nonexclusive list of factors that have been found to be sufficient, either singly or in combination, to establish a persons possession of contraband: (1) the defendants presence when a search is conducted; (2) whether the contraband was in plain view; (3) whether the contraband was in close proximity to, or accessible by, the defendant; (4) whether the place where the contraband was found was enclosed; (5) whether the defendant was under the influence of narcotics when arrested; (6) whether the defendant possessed other contraband or narcotics when arrested; (7) whether the defendant made incriminating statements when arrested; (8) whether the defendant attempted to flee; (9) whether the defendant made furtive gestures; (10) whether there was an odor of contraband present at the scene; (11) whether other contraband or drug paraphernalia were present; (12) whether the defendant owned or had a right to possess the place where the contraband was found; (13) whether the defendant was found with a large amount of cash; (14) whether the defendant possessed weapons; and (15) whether conduct of the defendant indicated a consciousness of guilt. Hargrove v. State, 211 S.W.3d 379, 38586 (Tex. App.San Antonio 2006, pet. refd).
Lucas contends the evidence is factually insufficient because it does not affirmatively link him to the marihuana or the cocaine. We disagree. While Lucas was not in exclusive possession of the vehicle where the marihuana and cocaine were found and the vehicle did not belong to him, there was evidence of several additional factors and circumstances that could be used to demonstrate his awareness of and control of the two items of contraband. Lucas had been present in the vehicle when the traffic stop occurred and the search was conducted. The marble-sized rock of cocaine was in plain view in a cup holder on the floorboard between the drivers and passengers seats and it was easily accessible to Lucas. The marihuana was found on the side of the car where Lucas had been riding; although it was in a hole in the door, there was testimony that it was within his sight and within his easy reach. Further, when Burns initiated the stop, he saw Lucas making furtive gestures, causing Burns to then suspect that Lucas may have been attempting to conceal something.[8] In addition, Lucas testified that he was nervous when the traffic stop was initiated, believing there was a chance that he would go to jail. Although Lucas later altered this testimony somewhat, such a statement could evidence a consciousness of guilt. Each of these factors creates an affirmative link tying Lucas to the cocaine and marihuana. The number of factors or links present is not as important as the logical force those factors have in establishing the elements of the offense. Hargrove, 211 S.W.3d at 386.
We are mindful that Lucas indicated a strong dislike for drugs, did not own the vehicle in question, and adamantly denied any knowledge of the presence of cocaine and marihuana within its confines.
Cases with similar evidence wherein the reviewing court found insufficient evidence to sustain a finding by a preponderance of the evidence after a hearing on revocation are not abundant. We find some similarity in the facts here to those in Wiersing v. State, 571 S.W.2d 188 (Tex. Crim. App. [Panel Op.] 1978). In it, Wiersing was a passenger in a vehicle in which illicit drugs were found after a traffic stop. The drugs were found on Wiersings side of the automobile and within his easy reach. The distinction lies in the fact that in Wiersing, the driver of the vehicle admitted to the ownership of the drugs and maintained that Wiersing had no knowledge of them. Here, although Lucas asked Jones, the owner of the car and its sole other occupant, to make similar statements regarding Lucass lack of connection to the drugs, no such exculpatory statements were made on his behalf.
The trial court remains the sole judge of the witnesses credibility, and may believe all, some, or none of the testimony. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Viewing the evidence in the light most favorable to the judgment of the trial court, we determine under that standard that the trier of fact could have concluded that the greater weight of the credible evidence created a reasonable belief in him that Lucas violated a condition of community supervision. See Allbright, 13 S.W.3d at 819. Accordingly, the trial court was within its discretion to so find.
As entered, the judgment revoking community supervision finds all of the allegations in the motion to revoke to be true. In so stating, the written judgment does not comport with the judgment pronounced by the court because the trial court specifically omitted a finding of true as to allegation number five of the motion (i.e., that Lucas had failed to avoid persons or places of disreputable or harmful character or was present where a criminal offense was being committed). This Court has the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992). In Asberry v. State, 813 S.W.2d 526 (Tex. App.Dallas 1991, pet. refd), the court noted that the authority of the appellate court to modify incorrect judgments is not dependent on request of any party; the appellate court may act sua sponte. The Texas Rules of Appellate Procedure provide direct authority for this Court to modify the judgment of the trial court. Tex. R. App. P. 43.2. We modify the judgment to omit the finding of true to allegation number five.
As modified, we affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: May 13, 2010
Date Decided: May 14, 2010
Do Not Publish
[1]See Tex. Code Crim. Proc. Ann. art. 62.102(b)(2) (Vernon 2006).
[2]At the conclusion of the hearing, the trial court found allegations one through four of the States amended motion to revoke community supervision to be true. The trial court did not find allegation number five to be true. That allegation reads:
5. That the defendant, Kermit W. Lucas, has violated condition (3) of his probation by failing to avoid persons or places of disreputable or harmful character or being present where a criminal offense is being committed.
[3]The vehicle, which was not registered to either Jones or Lucas, also had an expired registration, although Jones had said he purchased the vehicle.
[4]Neither Jones nor Lucas ever admitted to ownership of the cocaine and marihuana.
[5]Lucas lives with his brother and his brothers girlfriend. Jones is the son of Lucass brothers girlfriend.
[6]Lucas maintained that he did not know anything about Jones.
[7]These findings are:
1. That the defendant, Kermit W. Lucas, has violated condition (1) of his probation in that on or about July 21, 2009, in Gregg County, Texas, the defendant did then and there possess a controlled substance listed in penalty group 1 of the Texas Controlled Substances Act, namely cocaine, in an amount of one gram or less.
2. That the defendant, Kermit W. Lucas, has violated condition (1) of his probation in that on or about July 21, 2009, in Gregg County, Texas, the defendant did then and there possess a usable quantity of marihuana in an amount of two ounces or less.
3. That the defendant, Kermit W. Lucas, has violated condition (2) of his probation in that on or about July 21, 2009, in Gregg County, Texas, the defendant did then and there possess a controlled substance, to-wit: cocaine.
4. That the defendant, Kermit W. Lucas, has violated condition (2) of his probation in that on or about July 21, 2009, in Gregg County, Texas, the defendant did then and there possess a controlled substance, to-wit: marijuana.
[8]Furtive gestures are generally defined as those which are surreptitious, underhanded, or done by stealth. Lopez v. State, 267 S.W.3d 85, 94 n.26 (Tex. App.Corpus Christi 2008, no pet.) (citing Merriam-Websters Collegiate Dictionary 474 (10th ed. 1993)).